Anti-choice lawmakers have tried to re-define what qualifies as a "medically necessary" abortion to qualify as Medicaid coverage. A new lawsuit claims that definition unconstitutionally restricts access to reproductive health care for low-income women. (Law via Shutterstock)

With reporting by Teddy Wilson

Reproductive rights advocates in Alaska filed a lawsuit challenging a new state rule that they claim will severely restrict abortion access for low-income women.

The lawsuit, filed by the Center for Reproductive Rights, the American Civil Liberties Union (ACLU), the Planned Parenthood Federation of America, and Susan Orlansky of Anchorage in Alaska Superior Court on behalf of the Planned Parenthood of the Great Northwest, claims lawmakers are attempting to circumvent a 2001 decision by the Alaska Supreme Court that the state must cover a full range of reproductive health care under the Medicaid program, including an abortion determined to be medically necessary by a woman’s physician by passing a rule that drastically redefines what qualifies as “medically necessary.” This new definition, the plaintiff’s lawyers say, arbitrarily establishes criteria designed to severely and unconstitutionally restrict the ability of low-income women to access medically needed abortion services.

Anti-choice activists in the state have a history of trying to restrict abortion coverage for the state’s most vulnerable. Up until 1998, Alaska covered abortion services through what was then known as its General Relief Medical (GRM) program. That program was disbanded in 1998, and in its place came Chronic or Acute Medical Assistance (CAMA). CAMA provided all the same services as GRM with one notable exception—it drastically limited coverage for abortions.

Unlike GRM, which had provided coverage for all medically necessary abortions, CAMA limited coverage to only those situations where the life of the mother was at risk or the pregnancy was the result of rape or incest. Planned Parenthood sued and challenged the CAMA restrictions, arguing the state’s decision to deny Medicaid coverage for medically necessary abortions was a violation of women’s constitutional rights to equal protection and privacy. The Alaska court agreed, and ordered the state resume coverage for all medically necessary abortions. But the state resisted and continued to refuse coverage for all medically necessary abortions. This forced the court to issue a new order that clearly laid out for the state that they must return Medicaid coverage for medically necessary abortions and went as far as to define the scope of both “medical” and “therapeutic” abortions. “For purposes of this Order, the terms medically necessary abortions or therapeutic abortions are used interchangeably to refer to those abortions … necessary … to ameliorate a condition harmful to the women’s physical or psychological health, as determined by the treating physician performing the abortions services in his or her professional judgment,” the court wrote.

Then, in August 2013, anti-choice lawmakers proposed a new regulation that would radically change the definition of a medically necessary abortion and directly conflict with the definition previously laid out by the court. Under the 2013 regulation, for an abortion to be covered by Medicaid, the physician performing the procedure must certify that an abortion is “medically necessary to avoid a threat of serious risk to the physical health of the woman from continuation of her pregnancy due to the impairment of a major bodily function.” The physician must then check a box to explain the condition the woman has that meets this standard by choosing from a list of 21 specifically identified conditions, or indicating that she either has “another physical disorder, physical injury, physical illness, including a physical condition arising from the pregnancy” or “a psychiatric disorder that places the woman in imminent danger of medical impairment of a major bodily function if an abortion is not performed.”

The 21 enumerated physical conditions listed on the certificate include:

But having one of these conditions alone is not enough to guarantee Medicaid will cover the cost of the procedure. Even with one of those conditions Medicaid will only cover the cost of an abortion if a doctor attests that the abortion is “medically necessary to avoid a threat of serious risk to the physical health of the woman from continuation of her pregnancy due to the impairment of a major bodily function.” No other provider in Alaska is required to submit a similar certificate.

“The list was compiled by politicians and bureaucrats and not by doctors, and it is outrageous that this is the case,” Kristen Glundberg-Prossor, director of public affairs for Planned Parenthood of the Greater Northwest, told RH Reality Check. “No two women are alike, and no two pregnancies are alike. A checklist simply can’t take into account all the circumstances a woman can face.”

“In 2001 the state supreme court spelled it out. They made a decision that when you provide medical care for the poor, you’re obligated to do so in a neutral manner.” Glundberg-Prossor said.

As it stands, abortions are at best difficult for anyone in Alaska to access, especially low-income women. In 2012, 35.7 percent of “all women who obtained induced terminations” in Alaska reported that Medicaid was the source of payment. According to that report, a total of 1,629 legal abortions were performed during that period. As the plaintiff’s detail for the court in their request to have the law blocked, even with those procedures covered, patients often have more economic barriers to navigate. Many patients in the state travel hundreds of miles to access abortion services and some, by virtue of Alaska’s vast terrain, can only access reproductive health care centers by airplane, including at least one overnight stay.

For example, abortions are available almost exclusively at Planned Parenthood health centers in Anchorage, Fairbanks, and Juneau, and those centers only offer the procedure until 13 weeks following the first day of the woman’s last menstrual period (LMP). The cost of a first-trimester abortion at a Planned Parenthood of Alaska runs between $650 and $900; after 13 weeks, the cost ranges from $865 to $1,340—Planned Parenthood provides abortions to women from Alaska who are up to 18 weeks’ LMP at its health center in Seattle for those who can afford to get there.

“Every Alaskan woman, regardless of income, should be able to make the pregnancy decision that’s best for herself and her family,” said Chris Charbonneau, CEO of Planned Parenthood of the Great Northwest, in a statement. “The Alaska Supreme Court has already ruled that women’s pregnancy decisions must be given equal protection under the law. Politicians and government officials in Juneau should not decide what is ‘medically necessary.’ That’s a private matter between a woman and her doctor.”

Because the regulation precludes all but the most severely ill women from qualifying for coverage, many otherwise eligible women will not be covered by Medicaid for abortion services. And this, the challengers claim, is unconstitutional. For example, women with conditions, such as depression and bipolar disorder, who currently would be eligible for coverage of a medically necessary abortion will likely be denied covered under this new rule, the attorneys argue. This flies in the face of Alaska law and sets up the states most vulnerable for what the Alaska Supreme Court called the “particularly brutal dilemma” faced by Medicaid-eligible women with mental health issues if they are denied abortion coverage. “Without funding for medically necessary abortions, pregnant women with these conditions must choose either to seriously endanger their own health by forgoing medication, or to ensure their own safety but endanger the developing fetus by continuing medication,” the court wrote.

Janet Crepps, senior counsel with the Center for Reproductive Rights, echoed the court’s concern in a statement following filing of the lawsuit. “Women’s rights and access to reproductive health care are meaningless if bans on coverage keep high-quality, safe, legal services out of reach,” Crepps said. “The ability of women who depend on Medicaid for their health care to obtain the care they need from medical professionals they trust must not be interfered with by politicians.”

If not blocked by the court the regulations will take effect on February 2.